Activists are reeling from a bombshell court decision earlier this week, when a federal judge dismissed two cities’ lawsuits seeking damages from oil and gas companies for the effects of climate change. But in its haste to counter the impact of the judge’s ruling, a key player in the climate litigation campaign admitted that they want to use the courts as a policymaker.
In a blog post the day after Judge William Alsup’s ruling, Kathy Mulvey from the Union of Concerned Scientists complained that the judge “deferred to legislative- and executive-branch solutions” to climate change. She went on to list the amount of money spent by certain oil and gas companies and their trade associations on lobbying – activities that are not only legal but fully protected by the First Amendment.
Mulvey also tabulated profits for several large oil and gas companies, which of course is entirely irrelevant in court. The judge was tasked with determining whether a handful of companies can be held liable under the law for the future impacts of global climate change.
Could you imagine a federal judge ruling that companies’ treatment under the law was contingent upon what their net revenues were? That sounds more like Venezuela (or maybe Ecuador) than the United States.
But the truly revelatory moment in the UCS post is under the subheader: “Fossil fuel companies exercise undue political influence to block policy solutions.” Mulvey writes:
“Thus, the judge’s conclusion that climate change is a matter for the legislature and the executive branch is a Catch-22 that makes my brain hurt. Yes, Congress and the White House should take decisive action to curb climate change, but the fossil fuel industry has pulled out all the stops in an effort to block strong federal policies. The industry has friends in high places in the Trump administration: Environmental Protection Agency Administrator Scott Pruitt, Energy Secretary Rick Perry, Interior Secretary Ryan Zinke, to name just a few. Just this week, Buzzfeed broke the news that Pruitt urged fossil fuel executives to apply for EPA regional administrator positions.
“The defendant companies are not just responding to consumer demand. They do what they can to fix the market through undue political influence, which has forestalled the development and availability of renewable energy. And the duty of the legislative and executive branches to act does not absolve the judicial branch of responsibility.” (emphasis added)
UCS is admitting that Congress and the White House have not enacted the policies they want, and they amazingly believe that lack of action somehow grants the judiciary not only the authority but the “responsibility” to take action itself.
This is, of course, completely absurd.
The role of the judiciary is to interpret the law, which is what Judge Alsup did. The power to pass legislation – including any potential carbon tax or other climate policy – rests with Congress, although the executive branch has exerted a certain degree of authority there through agencies like the U.S. Environmental Protection Agency. Even then, EPA’s authority is derived from a broad delegation of power granted to the agency by congressional action, such as the Clean Air Act.
UCS and other supporters of the climate litigation campaign are upset that neither Congress nor the EPA has imposed their draconian, anti-energy policies. They blame this on lobbying from fossil fuel companies, which is not only dubious but also has no bearing whatsoever on the validity of Judge Alsup’s decision.
From the very beginning of this climate liability campaign, experts have worried that activists were trying to suppress free speech and are suing companies over their disagreement on climate policy. Activists deny these allegations, but UCS may have just done more to confirm them than anyone yet. In doing so, UCS has ironically provided justification for Judge Alsup’s decision.